Verizon set off alarm bells among net neutrality advocates last week when customers reported that the ISP was throttling Netflix video. If true, that would likely be a violation of current FCC guidelines. Verizon responded that it was just testing throttling technology on all video. On Tuesday, it went a step further and laid out a legal argument for why it can throttle video traffic across its platform anytime it wants.

Last week, Verizon Wireless customers noticed that the Netflix speed-test tool indicated that video data was capped at 10Mbps and that cap applied to both “unlimited” and limited plans. With the doomsday environment for net neutrality under the current FCC, this was worrisome. Verizon confirmed to Ars Technica that it was conducting routine tests of throttling on all video on its network.

On Tuesday, a Verizon spokesman told Broadcasting & Cable that its test was fully legal under the Open Internet Order (OIO) that sets guidelines for net neutrality at the moment. While we have every indication that the FCC led by former Verizon lawyer Ajit Pai intends to end Title II protections for the internet, it’s not done yet. So, Verizon still needs to play by the rules.

The clause of the OIO that Verizon is using to justify its tests on video reads:

No Throttling [47 C.F.R. ß 8.7]

A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.

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It’s the words “reasonable network management” that Verizon is seizing on. In their statement to Broadcasting & Cable, a spokesperson wrote the following:

Current net neutrality rules clearly state that providers may employ reasonable network management practices to ensure that their networks and services run efficiently and work well for their customers...

Video optimization is a non-discriminatory network management practice designed to ensure a high quality customer experience for all customers accessing the shared resources of our wireless network.

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Reasonable network management is deliberately vague in order to leave room for changes in the system over time. As Verizon spokesman Jim Gerace points out in a statement to Gizmodo, “T-Mobile’s cap defaults their customers to a video equivalent of something less than HD.” That’s true, T-Mobile’s unlimited plan caps video services’ data rate. Gerace adds, “They’ve been doing this for a long time so either no one’s noticed or it’s generally been accepted as OK.” That’s also true, and very to the point about the current FCC. All ISPs know that Pai and his cronies are deferential to what the industry wants. T-Mobile’s data cap was accepted by Tom Wheeler’s FCC as okay and it will undoubtedly be accepted under Pai’s as okay.

We asked two Verizon spokespeople about the exact data cap, whether a permanent change was in the works, and what exactly was being tested—neither would answer those questions.

Sensing my skepticism over whether the move to throttle video across its network is in compliance with the spirit of OIO guidelines on content, Gerace suggested we ask the FCC. That’s what we did, and we’ll update this post if we receive a reply. [Update 4:06PM - The FCC’s Communication Advisor Neil Grace sent us this reply when we asked about the FCC’s position on throttling all video content across a network: “Thanks for checking in on the reports about Verizon’s video optimization testing. I don’t have a comment on it.”]

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It’s honestly understandable that if a network is getting crushed by video, limits would be put in place. Of course, we just have to accept Verizon’s word that it is treating all video traffic equally. It’s a shame that Verizon appears to be arguing that it wants to make its network more shitty so that it can compete with T-Mobile. This will inevitably result in more tiered plans. But wouldn’t it be great if Verizon just made its own network infrastructure better? A race to the bottom in competition between networks is bad for everyone.